Home Site Pty Limited v Waverley Council [2009] NSWLEC 1354

Home Site Pty Limited v Waverley Council [2009] NSWLEC 1354

Significant determining weight should be given to the draft LEP and DCP as they are at a high level of certainty and imminence, making it appropriate to grant consent despite non-compliance with current controls; the mere possibility of change is insufficient to outweigh this certainty.

Jurisdiction
Australia
Judgment Date
26 October 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld; development application approved with conditions.
Legal Topics
['development Applications' 'draft Local Environmental Plan' 'development Control Plan' 'certainty and Imminence' 'deferred Commencement Condition']
['planning and Environment Law'] ['development Applications' 'draft Local Environmental Plan' 'development Control Plan' 'certainty and Imminence' 'deferred Commencement Condition']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether consent should be granted to a development which is unacceptable under current planning controls but acceptable under draft planning controls that have not come into effect' 'Whether a deferred commencement condition is necessary to align development consent with the draft controls']

Ratio Decidendi

Significant determining weight should be given to the draft LEP and DCP as they are at a high level of certainty and imminence, making it appropriate to grant consent despite non-compliance with current controls; the mere possibility of change is insufficient to outweigh this certainty.

Court Disposition

Appeal upheld; development application approved with conditions.

Orders

  • ['The appeal is upheld.' 'Development application for the erection of two nine-storey residential flat buildings at 42 - 48 Waverley Street, Bondi Junction is determined by the granting of development consent subject to the conditions in Annexure A.' 'Exhibit D is retained.']